148 Ark. 370 | Ark. | 1921
Appellant was indicted, tried and convicted in the Newton Circuit Court for selling whiskey, and, as a punishment therefor, sentenced to the State penitentiary for a term of one year. From that judgment is this appeal.
The indictment was assailed in the trial court on the ground that it did not name the person to whom the alleged illegal sale of intoxicating liquors was made. Over the objection and exception of appellant, the court sustained the indictment, and it is contended that reversible error, was committed in doing so. The contention is made that, since the offense has been raised to the grade of a felony, it is necessary to allege the name of the purchaser in the indictment, so as to inform the accused of the particular charge he is called to meet. The identical point raised here was before the court in the case of McNeil v. State, 125 Ark. 47, at which time the court ruled adversely to the contention of appellant. Appellant suggests that this was not a well-considered case, and should be overruled. Subsequent consideration of the rule announced in that case convinced us of its soundness, and it was reaffirmed. Springer v. State, 129 Ark. 106.
Appellant’s next insistence for reversal is that Ober Martin, a witness for the State, was permitted to testify contrary to the first testimony given by him. Dewey Martin, the main prosecuting witness, testified that he bought whiskey from appellant at appellant’s home in the presence of Ober Martin. When Ober Martin was placed on the stand by the State, he first testified that Dewey Martin never purchased the whiskey from appellant in his presence, but that Dewey Martin stopped at appellant’s home, and, after he came out, witness saw him with some whiskey. Over the objection and exception of appellant, the prosecuting attorney was permitted to ask Ober Martin whether he had not admitted to him, in a conversation that morning, that he was present when Dewey Martin purchased the whiskey from appellant. Ober Martin admitted making the statement, and then testified that he was present when his cousin, Dewey Martin, purchased the whiskey from appellant. Appellant insists that this was an impeachment or contradiction of the State’s own witness in a manner contrary to. section 4186 of Crawford & Moses’ Digest, which is as follows:
“The party producing a witness is not allowed to impeach his credit by evidence of bad character, unless it is a case in which it was indispensable that the party should produce him; but he may contradict him with other evidence,'and by showing that he has made statements different from his present testimony.”
This statute, if applicable in criminal cases, allows the party producing the witness, if surprised and prejudiced by the statement made, to show that he had made a different statement from his present testimony. Doran v. State, 141 Ark. 442. The fact first testified to by Ober Martin was a surprise and prejudicial to the State. Therefore, the question propounded by the prosecuting attorney to the witnesses as to whether he had not made a different statement was clearly admissible as laying the foundation for a contradiction. Jonesboro, Lake City & East. Rd. Co. v. Gainer, 112 Ark. 477. Of course, it was unnecessary to prove the . contradictory statement by other witnesses after Ober Martin admitted making a different statement from that to which he had testified.
Appellant’s last insistence for reversal is that the court, over the objection and exception of appellant, permitted the prosecuting attorney to cross-examine him as follows:
“Q. Now, isn’t it a fact that you have been making whiskey for three years?
“A. No, sir; I haven’t made a drop of whiskey or sold a drop of whiskey.
“Q. As a matter-of fact,.aren’t people out there getting mighty tired of the way you are doing?
“A. No, sir; I don’t. * * *”
The appellant answered the questions in, the negative, so no prejudice resulted to him on this account.
No error appearing in the record, the judgment is affirmed,
